Central Administrative Tribunal - Jodhpur
Akhilendra Kumar Singh vs M/O Railway on 13 August, 2021
CENTRAL ADMINISTRATIVE TRIBUNAL JODHPUR BENCH, JODHPUR Original Application No. 290/00229/2020 Date of Reserved -12,05,.2021 Date of Pronouncement : }2:08207 1 ORAM :
wee HON'BLE MRS. JASMINE AHMED, MEMBER (3) HON'BLE MS. ARCHANA NIGAM, MEMBER (A) Akhilendra Kumar Singh S/o Shri Chitradev Singh aged about §1 years by caste Rajput Resident of House No. 208, Near Water Tank, Basanti Chauk, Shri Ganganagar (Office Address : Working as Chief Booking Clerk Sriganganagar under DRM, Bikaner Division Railway Department) Applicant By Advocate: Mr. S.P. Singh present through VC.
Versus
1. Union of India, through the General! Manager, North Western Railway, Jaipur ~ 302005.
2. Divisional Railway Manager, North Western Railway, Bikaner ~ 334 004,
3. Senior Divisional Cormmercial Manager, North Western Railway, Bikaner- 334 001.
. Respondents By Advocate: Mr. Girish Shankhla present through VC Per Hon'ble Ms. Jasmine Ahmed ;:
This Application has been preferred under Sec. 19 of the A.Ts Act, 1985 mainly for the reliefs that "(a) That the impugned order vide Memo No. Vig/Coml/36/14 dated 31.8.2020 forwarded by respondent No. 3 may kindly xm Scanned with CamScanner be declared illegal, unjust, improper and deserves to be quashed and set aside and (b) That by writ, order or direction the respondents may kindly be directed to change Inquiry officer In place of Sukha Ram ACM-IL,"
2. The genesis of the relevant factual matrix of the application in hand may be summarised to the effect as contended by the applicant that he is a Chief Booking Clerk and rendered service of more than 26 years to the Indian Railways. Contentions taken on the issue are that applicant was implicated in false and fabricated case because of some complain made against the vigilance officials who were later punished. Applicant had approached this Hon'ble Court before, to change the IO because of alleged allegation of bias, wherein a direction to decide the representation was given. The competent autharity decided the representation and changed the inquiry officer. It is stated/mentioned that the previous [O Sh. N.S, Shekhawat was Vigilance Inspector who was replaced by Sh. Ashok Mehta who was Divisional Commercial Manager who was higher in rank to him. It is contended that the inquiry officer if replaced must be of the same rank but the respondent appointed inquiry officer a gazetted officer vide order dated 21.3.2017 whereas the previous 1.0 was not gazetted officer, Applicant approached this Tribunal in OA No, 120/2017 challenging the said order and the same was stayed vide order dated 25.4.2017. The previous inquiry officer viz. Sh, Ashok Mehta retired on 31.12.2017. Itis pieaded that respondents appointed Shri Sukha Ram, ACM who is higher in rank to previous inquiry officer Sh. N.S. Shekhawat and also gazetted officer similar to Sh. A. K. Mehta, DCM, the same circumstances where inquiry praceedings were stayed on Scanned with CamScanner 12.4.2017. In the present case also the IO is higher in rank and thus violates the mandatory provisions mentioned under the Railway Servants (Discipline & Appeal) Rules, 1968. That applicant presented a representation on 16.9,2020 mentioning clearly that previous 10 Sh. N.S. Shekhawat was not gazetted officer whereas the present one viz, Sh. Sukha Ram, ACM is similar to Shri Ashok Mehta who was Gazetted Officer and higher in rank to the previous vigilance inspector. Applicant in his representation dated 16.9.2020 stated regarding higher in rank and also that the present 1.0 does not belong fo Bikaner Division as he is working under the Jaipur Division and the place of inquiry is kept at Jaipur, 800 kms while there is no any train from the place of his working and rarely bus services are there due to current COVID pandemic. Applicant apprised the competent authority that the IO has been appointed as per the nomination of vigilance department who has issued the charge sheet and the present inquiry officer is also under his control, thus the inquiry officer will not go against the intent and desire of the superior authority, thus the whole proceedings will be affected and even it seems to be one sided as there will be occasion to be biased and prejudiced. It is contended that the letter dated 14.09.2020 itself reveals that the present IO is under control of vigilance department and he has been appointed as per nomination of the vigilance department. Thus, the present 10 is not expected to impart justice duc to bias and ill intent,
3. As regards the incident, as stated, applicant was falsely implicated under Rules 145 and 146 of Railway Act, 1989 and the 19 made inquiry report purely on false ground because he mentioned the name of such Scanned with CamScanner person as witness who was not on duty which is evident from the Statement recorded and without inquiry into the facts the inquiry was completed without extending an opportunity to keep his position. It is pertinent to mention here that the 10 mentioned the name of Shiv Prakash Swamy as witness but from the duty chart it is evident that he was not on duty. The learned Sessions Judge has acquitted the applicant and clearly passed direction that there will be no effect on the future career of applicant.
4, The respondent-department issued two Chargesheets on 19.2.2015 and vexed twice for the same charge for same ground and the same cause of action, which is in violation of Article 20 of the Constitution and Section 300 CrPC. The applicant was set free but the respondents have initiated disciplinary proceedings for the same charge which was previously issued and he is set free in that charge. It is clarified that a person cannot be punished for the same offence more than once and no person be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of commission of the offence. It is further submitted that the respondents compelled to live life in low dignity which is in violation of the mandate of the Constitution enshrined under its Article 21,
5. Apart from above, it is also pleaded that such an action has adversely affected his civil life, humiliated and mentally harassed and also principles of natural justice has been violated. Further stating that respondents are determined to deny the order passed by this Tribunal deliberately and intentionally which is wilful disobedience because the inquiry proceedings Scanned with CamScanner "ft were stayed due to being 1.0 higher in rank and the same procedure adopted again. It is further pleaded that respondent- department deliberately causing delay in finalizing inquiry proceedings thereby he would not get promotion which is due, hence this application.
6. Respondents have filed their reply praying for quashing same memo of order and applicant is willing himself to delay the inquiry proceedings tactically. A charge sheet for major penalty was issued and subsequently he was transferred at Suratgarh Thermal Power Station vide memo dated 6.9.2011 issued by the Ajmer Division on the charge of misappropriation while he was stationed under the Ajmer Division and since the vigilance department recommended his transfer, he was shifted and issue is presently under the roof of Bikaner Division. It has been mentioned that inquiry officers are appointed in sequence and, after retirement of Sh. Mehta who was at SI. No. 3, the incumbent at SI. No. 4 (Sh. Sukha Ram, ACM, Jaipur) in accordance with D&AR Rules stipulating that 10 should be sufficiently higher in grade and competent enough to deal with the matter. Respondents' have also stated that the disciplinary authority may appoint IO with his discretion or as against the nomination by vigilance department with the provisions of D&AR and there are no criteria for the same. That a bare perusal of Circular dated 20.02.2001 such as RBE No. 36/2001 issued by the Railway Board clarified the position in the manner that the departmental enquiry should be conducted by an officer who is sufficiently senior to the officer whose conduct is being inquired into. The status of CDI of the CVC vis-a-vis the charged official is not material because he belongs to an independent organisation ae Scanned with CamScanner outside the department of the charged official and cannot therefore be suspected of having any bias in the case.
4. It is contended further in the reply statement that according to RBE No. 93/2001 of RG6-30 dated i16.5.2001 procedure for nan CVC vigilance Cases pertaining to Group C and D employees have been explained clarifying that appointment of [0 is the Prerogative of the disciplinary authority in majority of cases leaving the choice of IO completely with the disciplinary authority. In such a case, while appointing IO, disciplinary authority may ensure that the officer being appointed by him for conduct of inquiry is of sound integrity and possesses adequate knowledge of Rules and procedures in regard to conduct of inquiry, which is a quasi - judicial proceeding. Hence, in the present case the IO appointed by the competent authority is perfect and valid for all reasons and present OA is liable to be dismissed.
8. Apart from above, the department has also taken the plea that applicant cannot seek any benefit of interim order which was granted in the earlier OA and there is no violation of any rule or provisions in appointing the 10 particularly when the present [0 is higher in rank and cannot be said that he is biased or not competent. The respondents stated that it is wrong that distance between Bikaner and Jaipur is 800 Kms. whereas it is only 335 kms and further it is wrong te contend that no train facilities are there between these two cities. It is clarified that 10 is just @ quasi judicial officer while holding the inquiry therefore cannot be said that he is under the control of disciplinary authority such frivolous grounds have no force to stand and Scanned with CamScanner needless to say that the Vigilance Department of North Western Railway is a separate unit of the Headquarters, thus, applicant's own averments are contrary, 9, Also respondents have narrated that on one hand applicant wants to change the IO and on the other he is denying the charges, which is not permissible in the eye of law as the criminal proceedings and departmental Proceedings are different in nature and even if he is acquitted in the criminal case even then the departmental! inquiry could be conducted according to the rules. The contention that he has been punished two times for the same charge is also denied,
10. Applicant has filed his rejoinder reiterating the stand taken by him in his rejoinder and no new plea has been taken.
11. With the consent of the Parties, we have heard the counsel for the parties at length and perused the record carefully.
12.The only question which has given birth to this Original Application is whether while on change of inquiry officer a person who is higher in rank than the previous inquiry officer can be appointed or not?
13. The entire chronology of the case in hand reveals that it is the third time an inquiry officer has been appointed, The first one was changed due to complain of bias against him. In regard to the second inquiry officer, applicant made a complaint of being senior in rank than the first one and approached the tribunal where primarily the inquiry proceeding was stalled Scanned with CamScanner too tee renee and reply was asked from the respondents by the Tribunal. While the matter was pending the inquiry officer superannuated and the matter became infructuous. Now the third inquiry officer is appointed and the applicant has filed this O.A for change of the Third inquiry officer, Now if we look into the issue that who can be an inquiry officer, the CCS (CCA) Rules, 1965 prescribes it under Rule 14. It says that the inquiries should be conducted by an officer who is sufficiently senior to the officer whose conduct is being inquired into, as inquiry by a junior officer cannot command confidence which it deserves.
In a same equivocal language The Railway Servant (Discipline & Appeal) Rules, 1968 speaks in verbatim of CCS (CCA) Rules. Under Rule 9, it also says that the inquiry officer should be sufficiently senior to delinquent Railway servant as the inquiry by a junior officer cannot command respect which it deserves, Hence the question now remains what prejudice will be caused to the delinquent officer if the changed inquiry officer is higher in rank than the previous one? In this regard the learned counsel for the applicant takes support of para 10 of page no 34 and 35 and states as per this provision the changed inquiry officer cannot be higher in rank than the previous one and needs to be changed.
We have given our thoughtful consideration on the issue.
Scanned with CamScanner The basic purpose of an inquiry is to find out the truth behind any allegation of misconduct or misbehaviour of a Govt. servant. While inquiring, the basic principle is to be followed that the inquiry should be fair and without any Bias, and for doing that a person has to be appointed as an inquiry officer who is sufficiently senior, having sound integrity, who possesses adequate knowledge of Rules and procedures in regard to conduct of inquiry. The applicant has not stated anything in regard to the incompetency of the newly appointed inquiry officer. It is also sean respondents have appointed inquiry officer serially. His only contention is that he is higher in rank than the previous one. It is also to keep in mind that on the basis of the applicant's request previous inquiry officer was changed by the respondents. Hence the plea of inquiry officer being in a higher rank than the previous inquiry officer cannot be a reason for not conducting the inquiry. More so, page 35 of the O.A says that in case of change of inquiry officer, the changed officer be of same rank, But it does not say that if the changed one is higher in rank then inquiry cannot be conducted.
It is also to be noted that the present inquiry officer belongs to Jaipur, hence the most important criteria of unbiased inquiry also cannot be questioned as the newly appointed inquiry officer will not have any acquaintance with anybody at Bikaner division. The repeated request of the applicant is unnecessarily delaying the inquiry process.
Taking into consideration the entire chronology, it is net felt that the respondents are not accommodating with the applicant or trying to delay the Scanned with CamScanner 10 inquiry process for any ulterior motive. Hence it is opined that the respondents are at liberty to proceed with the inquiry proceedings and the applicant is directed to co-operate with the inquiry proceedings.
Accordingly, it is not felt that the O.A is having any strong merit which requires interference with any process adopted by the respondents in regard to the enquiry. Hence the 0.A is dismissed having found no merits. No costs.
asmine Ahmed "----
Archana Nigam ny (Member A) (Member J)